Orange County District Attorney Todd Spitzer chides California Governor Gavin Newsom over Newsom’s recent decision to put a moratorium on carrying out the death penalty for 737 convicted people during the Orange County Victim’s Rally in Santa Ana, CA, on Monday, April 8, 2019. (Photo by Jeff Gritchen, Orange County Register/SCNG)

Federal civil rights investigators are in Orange County this summer questioning prosecutors on their improper use of jailhouse informants to garner confessions from fellow inmates, a violation of the inmates’ right to an attorney.

The noncriminal probe by the U.S. Department of Justice, which has been ongoing since December 2016, focuses on the informant practices by prosecutors and sheriff’s deputies at the jail as well as the withholding of exculpatory evidence from defense attorneys.

Recently seated District Attorney Todd Spitzer said DOJ investigators have completed their screening of transcripts and other documents covering cases in which jailhouse informants were used. It is unclear how far back those cases go. The files were provided by Spitzer and previous District Attorney Tony Rackauckas.

‘Black cloud’ over office

“This is really a black cloud over this office and I’m trying to do everything I can to facilitate an expeditious (probe),” Spitzer said. “I can’t have this going on for 10 years. This will just suffocate” the office.

Investigators are expected to finish their first round of interviews with prosecutors by late August. Spitzer said he has ordered his employees to submit to the interviews or face possible discipline. He also is having his right-hand man, Patrick Dixon, attend all the interviews.

Spitzer explained that he also is conducting his own investigation, based partially on the interviews.

“They (employees) needed to hear from me personally and directly how serious I am,” Spitzer said.

‘Critical moment’ for Orange County

News of the interviews was welcomed by Assistant Public Defender Scott Sanders, who discovered in 2014 that prosecutors and police were cheating in their use of jail informants.

“This is a critical moment in determining how the accused of the past, present and future will be treated by Orange County‘s criminal justice system,” Sanders said. “These developments further corroborate that the Department of Justice recognizes the seriousness of the situation and is carefully analyzing the appropriate remedies.”

Among those being questioned are former head of homicide Dan Wagner, who was at the helm of the county’s worst mass murder case when it unraveled. Under Wagner’s stewardship, a Superior Court judge issued a rare ban prohibiting the District Attorney’s Office from prosecuting accused mass murderer Scott Dekraai after its use of a jailhouse informant.

The judge also took the death penalty off the table when Dekraai pleaded guilty to fatally shooting eight people at a Seal Beach beauty salon in 2011, instead sentencing him to multiple terms of life in prison in 2017.

Wagner recently was moved to a less high-profile position in the prosecutors’ office.

Also being questioned is Senior Assistant District Attorney Ebrahim Baytieh, who served as Rackauckas’ mouthpiece during what became known as the “snitch scandal.”

Spitzer unseated 20-year incumbent Rackauckas in November after running on a platform of change. He recently received funding from the county Board of Supervisors to hire a lead prosecutor for the office’s unit that reviews whether defendants were wrongly convicted. Spitzer said he will hire from outside the office and is looking for someone with experience defending the accused.

State probe fizzled

A separate investigation started by former California Attorney General Kamala Harris and continued by current officeholder Xavier Becerra fizzled to a silent ending recently with no criminal charges filed. The state probe focused on three sheriff’s deputies accused of dishonesty by a judge during hearings on the use of informants.

The federal investigation was prompted by an invitation from Rackauckas as well as a letter signed by three dozen legal scholars from throughout the United States, pleading for a probe.

The Department of Justice, which has investigated police in incendiary places such as Ferguson, Missouri, rarely looks at prosecutors.

In Orange County, investigators are searching for a “pattern and practice” of violating the civil rights of defendants. An appellate court has said that the improper use of jailhouse informants and withholding of evidence in Orange County is “systemic.”

Tony Saavedra is an investigative reporter specializing in legal affairs for the Orange County Register. His work has been recognized by the National Headliner Club, the Associated Press Sports Editors, the California Newspaper Publishers Association, the Orange County Trial Lawyers Association and the Orange County Press Club. His stories have led to the closure of a chain of badly-run group homes, the end of a state program that placed criminals in inappropriate public jobs and the creation of a civilian oversight office for the Orange County Sheriff's Department, among other things. Saavedra has covered the Los Angeles riots, the O.J. Simpson case, the downfall of Orange County Sheriff-turned felon Michael S. Carona and the use of unauthorized drugs by Olympian Carl Lewis. Saavedra has worked as a journalist since 1979 and has held positions at several Southern California newspapers before arriving at the Orange County Register in 1990. He graduated from California State University, Fullerton, in 1981 with a bachelor of arts in communication.

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